Filed 10/24/17 In re C.S. CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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Appellant C.B., father of the minor, appeals from the juvenile court’s orders terminating parental rights and freeing the minor for adoption. (Welf. & Inst. Code, §§ 366.26, 395.)[1] Appellant argues that the orders must be reversed and remanded because the Sacramento County Department of Health and Human Services (Department) did not comply with the notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901, et seq.). The Department conceded the ICWA error and need for conditional reversal. We agree.

The ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. §§ 1901, 1902, 1903(1), 1911(c), 1912; In re Levi U. (2000) 78 Cal.App.4th 191, 195-196.) The juvenile court and the Department have “an affirmative and continuing duty to inquire” whether a child is, or may be, an Indian child. (§ 224.3, subd. (a); California Rules of Court, rule 5.481.)[2] If, after the petition is filed, the court “knows or has reason to know that an Indian child is involved,” notice of the pending proceeding and the right to intervene must be sent to the tribe or the Bureau of Indian Affairs (BIA) if the tribal affiliation is not known. (§ 224.2; see rule 5.481(b); 25 U.S.C. § 1912.) Failure to comply with the notice provisions and determine whether the ICWA applies is prejudicial error. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1424; In re Desiree F. (2000) 83 Cal.App.4th 460, 472.)

Here the Department received information indicating both sides of the minor’s family might have Indian ancestry. Yet, no further inquiry was made and no notice was provided to any tribes or the BIA. The Department represented in subsequent reports that it was “unaware of any information before the Court that would indicate this child is an Indian Child as defined by the [ICWA]” and the ICWA did not apply.

As the Department concedes in its letter brief at pages 6 and 7:

“Father reported that he is or might be a member, or eligible for membership, in a federally recognized tribe. (1 CT 110 [He also reported that one or more of his relatives is or also might be a member, and he listed the name of W.B., and identified him as his father.].) Even though father was incarcerated throughout the proceedings below—and despite the fact that he was unable to identify a tribe—the information he provided was sufficient to trigger DHHS’s duty of inquiry, as well as its duty to notice, at minimum, the BIA.

“Furthermore, even though mother’s whereabouts were practically unknown throughout the entire proceedings below, the maternal grandmother reported that the minor may have Cherokee Indian heritage through the maternal great-grandmother. (1 CT 5, 16.) Although the maternal grandmother did not identify a specific tribe, she at least identified a specific nation (“Cherokee”). The information provided by grandmother was sufficient to trigger further inquiry and notice to the Cherokee tribes.” (Footnotes omitted.)

Accordingly, we must conditionally reverse and remand the case to the juvenile court for further proceedings to address compliance with the inquiry and notice provisions of the ICWA.

We are compelled to note the propriety of a joint application/stipulation for reversal under the circumstances seen here. The sole claim of error in father’s 44-page opening brief was the failed ICWA notice, a claim conceded by the Department. A stipulation would have permitted this court to issue the remittitur forthwith, in accordance with the strong policy preference for prompt resolution of dependency matters. (See rule 8.272(c)(1).) The Department informs us in its letter brief that: “On April 28, 2017, the undersigned left a message on the voicemail of father’s appellate attorney, Jessica M. Ronco, informing her of respondent’s position; and proposing that we file a joint stipulation for the immediate issuance of the remittitur. During a telephone conversation on April 29, 2017, Ms. Ronco stated that she had consulted with her supervising attorney, and that she does not intend to join in such a stipulation.”

Attorney Ronco did not file a reply brief denying or explaining this refusal to enter into a stipulation and this court cannot fathom a justifiable reason for this refusal.

DISPOSITION

The order terminating parental rights is reversed. The juvenile court is directed to conduct further proceedings limited to the issue of compliance with the provisions of the ICWA. If it concludes that notice has occurred and the minor is not an Indian child, the order terminating parental rights shall be reinstated. If, after proper notice to the tribes, the court determines the ICWA applies because the minor is an Indian child, the court shall schedule a new section 366.26 hearing and proceed in accordance with the ICWA.

/s/

Duarte, J.

We concur:

/s/

Hull, Acting P. J.

/s/

Renner, J.